Followers

Thursday, September 21, 2006

The Nutty Professor

Prof. Makau Mutua, writing in the Nation, once again demonstrates the folly of seeing a new constitution as a panacea for all that ails Kenya. He correctly characterises the current machinations for miimum reforms as "an ideologically empty battle for raw political power" and goes to great lengths to demonstrate why the proposed reforms would neither deliver a democratised state nor address the critical problems at the heart of our disfunctional democracy. His proposed magic pill? "Holistic and comprehensive constitutional reform" of the sort that we have been chasing for the last twenty years.

In arguing against the minimum changes, he mistakes constitutionalism for a constitution and assumes that our ethnic-based political system is a liability that can be solved through legislative means. He also leads us into a political and intellectual cul-de-sac by implying that the imperial presidency, which is the main obstacle to reform, can be done away with in one fell blow by the enactment of a new constitution.

According to Joel Ngugi, an Assistant Professor of Law at the University of Washington, "a constitution does not mythically solve contested political problems. It provides a shared framework to rework, re-organise, re-funnel, re-think and re-frame these political problems. It is a product of political compromise." The tribal nature of our politics is not something that can be legislated into oblivion. It is a function of our diversity. While our political parties may be ideologically bereft, they do have real ethnic constituencies. The contest for political power is also a struggle by these constituencies for their rightful share of the national cake. Any good constitution would only provide a level playing field for that struggle not change the terms of it. In the light of this, any attempts to regulate the competition for power and make it a fair contest should be welcomed. While recognising that the IPPG compromise was instrumental in ejecting the KANU kleptocrats from State House, Prof. Mutua, by opposing electoral reform, sets the stage for the perpetuation of the equally kleptocratic Kibaki regime in power and further dilution of the prospect of real reform.

Secondly, Prof Mutua states that "the reason for Mr Kibaki’s failure to reform the state is that he inherited an imperial presidency" (a poor choice of words as one would think that an "imperial presidency" would afford, rather than deny, Kibaki an opportunity to change the system, if he so wished). The kind Professor does not, however, burden us with his views on how we would go about dismantling that institution before embarking on constitutional reform considering that the presidency would itself be the main target of those reforms. It is a classic catch 22: we have to remove the powers of the president, so we can have the necessary reforms to remove the powers of the president. I see things differently. The overaching presidency is the product of numerous constitutional amendments. Why not use the same process to cut it down? The sorry history of constitutional reform in Kenya has demonstrated that no incumbent will willingly cede the power of his office, literally at the stroke of a pen, by promulgating a new constitution. However, the same history shows that it is possible to extract a series of minimal compromises that when put together have the effect of instituting a new constitutional order. The ODM's (or LDP's or whatever-meaningless-acronym-they-chose-to-be-known-by's) clamour for minimum changes before the elections, while undoudtedly sef-serving, provides an opprtunity to do just that.